Panacea Biotec Ltd. and Ravinder Jain v. State of Kerala and Drugs Inspector (Intelligence Branch), Thrissur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944** **CRL.MC NO. 2802 OF 2012** **AGAINST THE ORDER DATED 10.07.2012 IN CRL.M.P.NO.5594/2011 IN C.C.NO.20/2009 OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR** ## **PETITIONERS/ACCUSED NOS: 1 TO 3:** - **1 M/S.PANACEA BIOTEC LTD A.241,OKHLA, IND.AREA-1, NEW DELHI-110 020. REPRESENTED BY S.H.RAVINDER JAIN, MANAGING DIRECTOR, RESIDING AT 18/56, EAST PARK AREA, KAROL BAGH, NEW DELHI-110005.** - **2 SRI.RAVINDER JAIN MANAGING DIRECTOR, RESIDING AT 18/56, EAST PARK AREA, KARO BAGH, NEW DELHI-110005.** - **3 PANACEA BIOTEC LTD. 39/3143-A,DIWANS ROAD, ERNAKULAM, COCHIN-682 016, KERALA, REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.BIMALESH KUMAR, RESIDING AT 60/1500, LANE NO.II, HOUSE NO.35, UDAYA NAGAR, KATHRIKADAVU , ERNAKULAM.** **BY ADVS. DR.K.P.SATHEESAN SRI.ANOOP.V.NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS ERNAKULAM** ## **RESPONDENT/STATE & COMPLAINANT :** - 1 **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** - 2 **THE DRUGS INSPECTOR (INTELLIGENCE BRANCH) OFFICE OF ASSISTANT DRUGS CONTROLLER, THRISSUR – 680 001.** **BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION** **PP SRI.NOUSHAD K.A** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **14.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NO. 2802 OF 2012** **2** ## BECHU KURIAN THOMAS, J ......….................................. Crl.M.C. No.2802 of 2012 ….................................. Dated this the 14th day of July, 2022 ORDER Being aggrieved by the order dated 10.07.2012 in Crl.M.P.No.5594/2011 in C.C.No.20/2009 on the files of the Chief Judicial Magistrate Court, Thrissur, petitioners have preferred this petition under Section 482 of Cr.P.C. As per the impugned order, the learned Magistrate condoned the delay in filing the complaint and directed accused Nos.1 to 3 and 5 to 8 to face the trial. 2. Petitioners, who are accused Nos.1 to 3, are challenging the correctness of the order directing them to face the trial. During the course of the proceedings before this Court, the 2 nd petitioner, who is arrayed as the 2 nd accused expired, and therefore, proceedings as against him have abated. This petition filed under Section 482 of Cr.P.C., is therefore confined to 1 st and 3rd accused in C.C.No.20/2009 of the Chief Judicial Magistrate Court, **CRL.MC NO. 2802 OF 2012** **3** Thrissur. 3. Proceedings, in the C.C.No.20/2009 of the Chief Judicial Magistrate Court, Thrissur; were initiated on the basis of a private complaint filed by the 2 nd respondent under Section 32 of the Drugs and Cosmetics Act, 1942 alleging misbranding under Section 18(a)(i) r/w 17(b) and 17(c) r/w Rule 96 of the Drugs and Cosmetics Rules, 1945. Initially, after cognizance was taken accused were served with the summons. The accused immediately approached this Court alleging delay in lodging the prosecution. By order dated 17.06.2011 in Crl.M.C.No.2551/2009 this Court held that the cognizance taken against the accused, is bad in law on the ground of limitation. However, this Court directed the learned Magistrate to consider afresh whether there were sufficient grounds to condoned the delay. Pursuant to the aforesaid direction, the learned Magistrate condoned the delay, by the impugned order, and directed the accused, except accused No.4, to face trial. It is pertinent to mention that as regards the 4 th accused, this Court had in Crl.M.C.No.2551/2009 quashed **CRL.MC NO. 2802 OF 2012** **4** the proceedings against him, finding that he is only a power of attorney holder. 4. Sri.K.P.Satheesan, the learned Senior counsel for the petitioner, raised three contentions while assailing the impugned order. It was submitted that the condonation of delay by the learned Magistrate was totally perverse, that there was an absence of pleadings regarding involvement of the 2 nd accused in the day-to-day affairs of the business of the 1 st accused Comapny and that in any event, there was a failure to comply with the mandatory procedure under Section 202 of Cr.P.C. 5. Sri.Noushad K.A., the learned Public Prosecutor, controverted the contentions and pointed out that the question of delay was considered and the learned Magistrate deemed it fit in the interest of justice to condone the delay, and hence, there was no perversity. It was also pointed out that a specific allegation has been made against the 2 nd petitioner regarding his involvement in the day-to-day affairs of the Company and that the said pleading on page no.6 of the complaint is sufficient **CRL.MC NO. 2802 OF 2012** **5** to constitute the requirement contemplated under law to proceed against him. It was lastly contended that the procedure under Section 202 of Cr.P.C. cannot be treated as a mandatory requirement in the circumstances of the case and hence, non-compliance ought not vitiate the proceedings. 6. The complaint was lodged with a delay of 5 days according to the prosecution, while according to petitioners there is a delay of more than two months. Since Section 473 of Cr.P.C states that the delay can be condoned in the interest of justice, I am of the view that the impugned order condoning the delay in the interest of justice cannot be said to be perverse, irrespective of whether the delay was only five days or more than two months as was canvassed. Though there is an absence of reference to any specific reasons, the learned Magistrate has condoned the delay, the discretion conferred upon the court to condone the delay in the interest of justice cannot be said to have been exercised in a perverse manner, though ideally, the application for condonation **CRL.MC NO. 2802 OF 2012** **6** of delay ought to have mentioned specific reasons. In the peculiar circumstances of the case, I do not find any reason to interfere with the impugned order on the ground of limitation. 7. Relating to the next contention on the absence of allegation against the 2 nd petitioner; since the 2 nd accused expired during the pendency of this proceeding, the question does not survive for consideration. 8. The third contention is based upon the non-compliance of the procedure contemplated under Section 202 of Cr.P.C. Section 202 of Cr.P.C. reads as follows: 202.Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction], postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: PROVIDED that no such direction for investigation shall be made- **CRL.MC NO. 2802 OF 2012** **7** (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant. 9. It is trite law that when an accused hails from a place outside the jurisdiction of the court, after the amendment of Section 202 of Cr.P.C., in the year 2005, cognizance can be taken only after complying with the procedure under Section 202 of Cr.P.C., by examining the complainant or the witnesses. The purpose behind incorporating a process of filtering before issuing the process is with a salutary purpose, which is to prevent **CRL.MC NO. 2802 OF 2012** **8** frivolous complaints from being initiated against persons, residing outside the jurisdiction of the court. 10. In Birla Corporation Limited v. Adventz Investments and Holdings Ltd. and others [(2019) 16 SCC 610] , it has been held that under the amended sub-section (1) of Section 202 of the Code of Criminal Procedure, it is obligatory upon the Magistrate before summoning an accused residing beyond its jurisdiction, to enquire into the case himself or direct the investigation to made by a Police Officer or by such other person as it deems fit for finding out whether or not there is sufficient ground for proceeding against the accused. 11. After adverting to various decisions, it was held that considering the object of the amendment, it was obligatory for the Magistrates to comply with the mandate of Section 202 of Cr.PC and that when an accused lives beyond the territorial jurisdiction of the Magistrate, it was mandatory to comply with Section 202 of Cr.PC. References were made to the decision in Vijay Dhanuga and others vs. Najima mamtaj and others [ (2014) 14 SCC **CRL.MC NO. 2802 OF 2012** **9** 638] and Abhijit Pawar vs.Hemant Madhukar Nimbalkar and Another (2017) 3 SCC 528] . 12. This Court also had occasion to consider the principle under Section 202 of Cr.PC in several cases and has held that cognizance taken without compliance with Section 202 of Cr.PC is bad in law. 13. In view of the aforesaid contentions, I called for the records from the Magistrate’s Court and perused the proceedings. I am satisfied that before issuing summons to the accused, the Magistrate had failed to conduct the enquiry contemplated under Section 202 of Cr.PC. Petitioners are undoubtedly residing outside the jurisdiction of the learned Magistrate. Since the said procedure under Section 202 Cr.PC is mandatory and cognizance was taken without complying with the said mandate, the proceeding against the petitioners is an abuse of the process of the court. The proceedings in C.C.No.20/2009 before the Chief Judicial Magistrate’s Court, Thrissur cannot continue. **CRL.MC NO. 2802 OF 2012** **10** 14. In view of the above consideration, I am satisfied that this is a fit case to invoke the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973. Accordingly, I quash all further proceedings as against accused 1 and 3 in C.C.No. 20/2009 on the files of the Chief Judicial First Class Magistrate Court, Thrissur. The Crl.MC is allowed. Sd/- BECHU KURIAN THOMAS JUDGE AMV/18/07/2022 **CRL.MC NO. 2802 OF 2012** **11** ## APPENDIX ## PETITIONERS ANNEXURES : |ANNEXURE-I|COPY OF THE COMPLAINT FILED BY THE 2ND<br>RESPONDENT DATED 20.01.2009 BEFORE THE CHIEF<br>JUDICIAL MAGISTRATE'S COURT THRISSUR.| |---|---| |ANNEXURE-II|COPY OF THE ORDER DATED 17.06.2011 IN<br>CRL.M.C.NO.2551/2009| |ANNEXURE-III|COPY OF THE REPORT FILED BY THE 2ND<br>RESPONDENT DATED 28.09.2011| |ANNEXURE-IV|COPY OF THE OBJECTION FILED BY THE PETITIONERS<br>DATED 30.01.2012 IN C.C.NO.20/2009| |ANNEXURE-V|COPY OF THE ORDER DATED 10.07.2012 IN<br>CRL.M.P.NO.5594/2011 IN C.C.NO.20/2009 OF THE<br>CHIEF JUDICIAL MAGISTRATE,THRISSUR.| |ANNEXURE-VI|COPY OF THE PROCEEDINGS BEFORE THE HON'BLE<br>CHIEF JUDICIAL MAGISTRATE'S COURT THRISSUR<br>DATED 29.01.2009 IN C.C.NO.20/2009| ## RESPONDENTS ANNEXURES : TRUE COPY